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WASHINGTON – Testing is set to resume next week on the blowout preventer that failed to stop gushing oil at BP’s Macondo well, but an independent federal agency that has been probing the disaster will not be permitted to participate.

Under a federal judge’s ruling, the only witnesses allowed during the examination at a NASA facility in New Orleans will be representatives of the Justice Department, oil spill victims in a broad class-action lawsuit and three companies linked to the disaster.

That shuts the door to the Chemical Safety Board, the latest setback for the U.S. agency that has been trying to get a foothold in investigating the spill since lawmakers requested the board’s involvement last year.

A four-month probe of the blowout preventer concluded that after surging oil and gas pushed drill pipe askew, the device’s powerful shear rams were unable to completely sever the drill pipe and seal the well.

On March 25, U.S. District Judge Carl Barbier granted BP’s request for additional tests, which will be conducted by the same forensic analysis firm that examined the blowout preventer at the Michoud NASA facility from November through February.

Although the CSB was part of a “technical working group” that guided that testing, Barbier’s ruling last week excluded the board — along with anyone else not party to oil spill litigation – from the additional analysis.

The ruling was not released, but it was described by several people with know-ledge of the case and connections to the oil spill litigation that Barbier is overseeing.

The CSB has limited recourses to gain access now, since it does not have independent litigating authority like other federal agencies.

The CSB has limited recourses to gain access now, since it does not have independent litigating authority like other federal agencies.

Justice Department

Instead, it is up to the Justice Department whether to enforce CSB subpoenas or fight for its access in court. Lawyers at the Justice Department concluded months ago that it would not assert CSB’s jurisdiction in court, amid uncertainty about whether the agency was authorized to probe the accident.

Although the CSB has investigated more than 50 industrial accidents in its two-decade history – including the lethal 2005 explosion at BP’s Texas City refinery – federal officials and companies linked to the Macondo well have questioned the board’s jurisdiction to probe the Deepwater Horizon blast.

A stationary object?

The federal law that created the CSB says it is not authorized to investigate marine oil spills. The CSB has argued that applies to investigations of transportation-related spills and not its probe focusing on what happened on the rig itself.

The rig was tethered to the well in the seabed, effectively making it a stationary installation, CSB officials have said.

“The CSB continues to face significant challenges in its fact-gathering process, including companies and witnesses evading subpoenas for testimony and records,” said CSB Chairman Rafael Moure-Eraso said in a statement.

Moure-Eraso said the agency is focusing on whether the evolving federal oversight of offshore drilling “can adequately prevent another major accident and protect offshore workers.”

On Wednesday, the CSB asked the Obama administration to hand over potentially hundreds of thousands of documents amassed during a presidential commission’s six-month probe of the spill.

Don Holmstrom, the CSB’s investigations supervisor, said the commission’s documents “would provide us the ability to have the fullest possible picture of what occurred.”

Request to Chu

Moure-Eraso made the request in a letter to Energy Secretary Steven Chu, saying that the commission had seemed likely to approve an earlier request for the material, but that the document transfer could not be worked out before the presidential panel was disbanded last month.

The Energy Department is reviewing the letter and will consult with the Justice Department on the response.

Bob Graham, the co-chairman of the presidential commission, said in written responses to questions from the Senate in March that the CSB’s earlier request for the commission documents involved “legal issues” that the Justice Department had to resolve.

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Jennifer A. Dlouhy covers energy policy, politics and other issues for The Houston Chronicle and other Hearst Newspapers from Washington, D.C. Previously, she reported on legal affairs for Congressional Quarterly. She also has worked at The Beaumont Enterprise, The San Antonio Express-News and other newspapers. Jennifer enjoys cooking, gardening and hiking. She lives in Washington, D.C., with her husband and toddler son.

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